Madhya Pradesh High Court
Ashok Kumar Patel vs The State Of Madhya Pradesh on 17 February, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:7714
1 WP-19329-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 17th OF FEBRUARY, 2025
WRIT PETITION No. 19329 of 2015
ASHOK KUMAR PATEL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Arjun Singh - Advocate for petitioner.
Shri Mohan Sausarkar - Government Advocate for respondents/State.
ORDER
Assailing the order dated 19.05.2010 passed by respondent No.4 whereby, the petitioner has been compulsorily retired from service, the present petition has been filed.
2. It is the case of the petitioner that he was a Constable in GRP Chowki, Habibganj on 03.08.2009. His duty was fixed in Musafirkhana Reservation Office from 20.00 hours to 08.00 hours. It is alleged that during his duty hours on 03.08.2009 while coming to Habibganj from Itarsi in train No.2534 Pushpak Express the petitioner demanded Rs.500/- from passenger of Coach S-12, Berth No.56, named Rafiq, R/o Patae Bazar, Morava, Tehsil Kurwa, District Unnav (U.P.). It was further alleged that the petitioner punched and slapped the said passenger and used filthy language and moreover he snatched the ticket of the said passenger. The FIR of the said incident was lodged in GRP Thana Bhopal after taking Dehati Nalishi of Raffiq by Additional Sub-Inspector-M.P. Thakkar going to resident of complainant Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 2 WP-19329-2015 Rafiq. Thereafter, criminal case at Crime No.377/09 for offence under Sections 323, 294 and 327 of IPC was registered against the petitioner on 07.08.2009.
3. The petitioner was placed under suspension by the respondent No.4 on the basis of registration of criminal case against him. The departmental enquiry was initiated against the petitioner regarding his absence from work. The investigation officer was appointed on 23.11.2009 and charge sheet was issued to the petitioner. The same was handed over to the petitioner along with photocopy of the documents as well as the list of prosecution witnesses. The petitioner submitted sick application along with medical documents but the said documents were not taken note of and he was held guilty and penalty of deduction of amount equal to increment of one year was imposed and the absence of petitioner from 03.08.2009 to 06.11.2009 was treated to be period as 'no work no pay' and he remained suspended during the aforesaid period.
4. On 23.11.2009, the respondent No.4 again initiated enquiry against the petitioner. Three charges were levied against him which were similar to the charges framed in criminal offence against the petitioner. After conclusion of the departmental enquiry, the charges levied against the petitioner were found proved and he was held guilty for breach of 64(11) of Police Regulation and for breach of Rule 3 General(1) 2 & 3 of M.P. Civil Services Conduct Rules, 1965.
5. On 19.05.2010, the respondents passed an order of compulsory retirement of the petitioner and further observed that the suspension period remains as it is and the final decision with respect to suspension period shall Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 3 WP-19329-2015 be taken after the decision in the criminal case. The petitioner preferred an appeal against the said order before the respondent No.3 but the same was dismissed vide order dated 13.09.2010. The second appeal preferred before the respondent No.2 was also dismissed vide order dated 19.11.2010. Thereafter, the petitioner was acquitted in the criminal case by the court of JMFC Bhopal by judgment of acquittal dated 26.03.2015. After acquittal of the petitioner from the criminal case, he preferred several representations to the authorities requesting for reinstatement in service but of no consequence. Thereafter, a mercy appeal dated 07.09.2015 was preferred before the Additional Deputy General of Police, Railways, Bhopal and vide order dated 16.09.2015 by assigning the reason that this issue has already been considered and rejected by the order dated 13.01.2011, the mercy appeal was rejected. Later, a letter was issued from the office of respondent No.4 asking the petitioner to evacuate the government accommodation. Therefore, the present petition has been filed.
6. It is the case of the petitioner that once he has already been acquitted in the criminal case which was the very basis of initiation of the departmental enquiry against the petitioner, coupled with the fact that the charges levied in the criminal case were exactly identical to that of the departmental enquriy, the authorities should have considered the case of the petitioner for reinstatement in service. It is further pointed out that the very basis of initiation of departmental enquiry is the registration of the FIR against the petitioner. There are no different set of charges levied against the petitioner.
Even the witnesses examined in the criminal case are identical to that Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 4 WP-19329-2015 produced by the department in the departmental enquiry. It is submitted that once on the same set of evidence and same witnesses in criminal case as well as in departmental enquiry case and the fact that the petitioner has been acquitted in the criminal case then the authorities should have re-considered the case of the petitioner for imposing of some other penalty apart from compulsory retirement as the punishment is too harsh and disproportionate.
7. It is argued that once he has been acquitted in the criminal case then the ground on the basis of which departmental enquiry is initiated against the petitioner is not available to the authorities especially in the circumstances when it is a clean and honorable acquittal of the petitioner. It is argued that the prosecution has totally failed to prove the charges levied against him in the criminal case. Under these circumstances, there was no occasion for the authorities to continue with the departmental enquiry.
8. Learned counsel for the petitioner has relied upon the judgment passed by the Hon'ble Supreme Court in the case of G.M. Tank v. State of Gujarat and others: 2006 4 Supreme 740 [ (2006)5 SCC 446 euivalent citaion].
9. Further, learned counsel for the petitioner has relied upon the judgment passed by this Court in W. P. No.19628/2017 ( Archana Nagar v. State of Madhya Pradesh and another) decided on 16.03.2018 with reference to paragraph 16:-
"16- In view of the foregoing discussion, in my considered opinion, the finding recorded by the Director General of Police, Bhopal in the impugned order Annexure P/7 dated 13.7.2017 incidentally stating that the acquittal of the petitioner is on the basis of the benefit of doubt, is unsustainable in law, therefore, the reasons to deny the benefit of payment of the wages do not find to be tenable in the eyes of law, hence the said finding stands set aside quashing the impugned order Annexure P/7 Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 5 WP-19329-2015 dated 13.7.2017."
10. Therefore, he has prayed for setting aside of the impugned order with a further direction to the authorities to re-consider the case of the petitioner for imposition of some lesser punishment as termination of service is harsh and disproportionate looking to the facts and circumstances of the case. It is pointed out that during pendency of the petition the petitioner has attained the age of superannuation and stood retired on 13.11.2024, therefore, the respondents be directed to impose lesser punishment on the petitioner and all the terminal benefits be cleared.
11. Per contra, learned counsel for the respondents have vehemently opposed the contention and supported the impugned order. It is argued that the initiation of the criminal case against the petitioner and the departmental proceedings are two different things. Both are based upon two different set of facts and evidence. One is based upon strict proof of evidence while other is based on preponderance of probabilities. The charges levied in the criminal case are different from the charges levied in the case of departmental enquiry. The petitioner has participated in the departmental enquiry and after granting him full opportunity of hearing in the departmental enquiry the Inquiry Officer found all the three charges proved against the petitioner. Accordingly, taking note of the entire service record of the petitioner and his previous conduct the order of compulsory retirement has been passed.
12. It is argued that the charges levied the criminal case and the article of charges in the departmental enquiry case could not be equated as the charges in the criminal case are dependant upon strict proof of evidence and requires Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 6 WP-19329-2015 the charges to be proved beyond any reasonable doubt, whereas, in the departmental enquiry it is only the preponderance of probabilities which does not require strict proof of evidence. No strict rule of evidence is required in a departmental enquiry. For the act of the petitioner that while on duty he was drunk and has misbehaved with the passenger while travelling in the train, asking for Rs.500/- from the passenger and also hit him and snatched his ticket, for which FIR was lodged at GRP Thana, Bhopal, against the petitioner. Even the findings recorded in the criminal case does not completely exonerate the petitioner. There is a specific finding recorded by the learned trial Court with respect to the fact that petitioner was drunk while he was on duty and liberty was rescued with the department for taking disciplinary action against him. Therefore, it cannot be said that it is an honorable acquittal granted to the petitioner by the learned trial Court. It is only the charges of abusing the passenger and beating him etc. that could not be proved by the prosecution.
13. It is argued that in terms of the settled proposition of law the departmental enquiry as well as the criminal case both can run parallelly on the same set of evidence also in terms of the judgment passed by the Hon'ble Supreme Court in the case of Maharashtra State Road Transport Corporation v. Dilip Uttam Jayabhay , reported in 2022 0 Supreme(SC) 4 [equivalent citation (2022) 2 SCC 696] has held as under:-
"11.4 ....As per cardinal principle of law, an acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings as the standards of proof in both the cases are different and the proceedings operate in different fields and with different objectives. Therefore, Industrial Court has erred in giving much stress on Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 7 WP-19329-2015 the acquittal of the respondent by the criminal Court".
14. It is submitted that the appeal preferred against the punishment order as well as the second appeal and mercy appeal preferred against the same have been dismissed. Therefore, no interference is warranted in the present. The petitioner may have been acquitted in the criminal case, but in the disciplined police force the employee should work with utmost devotion, sincerity, discipline and should have impeachable character and by his act/conduct the image of the department should not be tarnished. There should not be any criminal antecedents against the employee. In event of involvement of candidate in criminal offence the authority is having every right to terminate the services of the employee in terms of the settled legal proposition of law by the Hon'ble Supreme Court in the case of Avtar Singh vs Union of India reported in 2016 0 Supreme(SC) 578 [equivalent citation (2016) 8 SCC 471].
15. Counsel appearing for the petitioner has heavily relied upon the Regulation 241 of the Police Regulations which deals with the effect of acquittal of the employee in a criminal case. It is argued that when the police officer has been tried and acquitted by the criminal Court, he must as a rule be reinstated. He may not be punished departmentally when the offence for which he has been tried constitute the sole ground of punishment. The said Regulation has not been followed by the authorities. He has placed reliance upon the judgment passed by this Court in the case of H.R. Kaurav v. State of M.P. 2009(2) MPLJ 189. He prays for a similar relief to be extended to him.
16. Heard the counsels for the parties and perused the record.
Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PMNEUTRAL CITATION NO. 2025:MPHC-JBP:7714 8 WP-19329-2015
17. On the perusal of the record it is an undisputed fact that criminal case at Crime No.377/09 for offence under Sections 323, 294 and 327 of IPC was registered at GRP, Police Station, Bhopal against the petitioner. The authorities have issued a charge sheet to the petitioner levying three charges against him mentioned as under -
"1- द० 3.8.09 को े न 2534 डा० पु पक ए स ेस म या ी मोह० रफ क िन० पटे ल बाजार मारे ावा तहसील कुरवा जला उ नाव जो कोच एस-12 बथ नं० 56 पर या ा कर रहा था, को शराब का सेवन क हालत म स डास तरफ ले जाकर गाल पर चांटे व तीन-चार मु के मारना, व कहना क 500/- पये दे दो वरना अगले टे शन पर उतार दे ग । इसका या ा ट कट ले िलया, गंद -गंद गािलयां दे कर पुिलस रे यू० के पैरा 54(11) का उ लंघन करना ।
2- द0 03/08/09 को डयूट समय म शराब का सेवन कर म० ० िस वल सेवा (आचरण) िनयम 1965 के िनयम-3-सामा य (1) के (दो) एवं (तीन) का उ लंघन करना । 3- पूव के कदाचरण म कोई सुधार नह ं लाकर आम जनता के साथ अशोभनीय कदाचरण करने का आद होना ।"
18. The petitioner duly participated in the departmental enquiry and the Inquiry Officer found all the charges proved against the petitioner. Punishment of compulsory retirement was imposed upon the petitioner. The authority has taken note of the fact that earlier also the petitioner has indulged in criminal activities for which departmental enquiry was initiated against him and and a penalty of deduction of amount equal to increment of one year has been imposed and his absence from 03.08.2009 to 06.11.2009 was marked as 'no work no pay' and he was placed under suspension. Petitioner preferred an appeal against the order dated 11.05.2010 to the respondent No.3 but the same was dismissed on 13.09.2010. The second appeal preferred to respondent No.2 was also dismissed on 19.11.2010.
Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PMNEUTRAL CITATION NO. 2025:MPHC-JBP:7714 9 WP-19329-2015
19. It is the case of the petitioner that after facing the criminal trial he was acquitted of all the charges vide judgment of acquittal dated 26.03.2015. Once he has been acquitted of all the charges in the criminal case and the fact that the initiation of the departmental enquiry was based upon the registration of a criminal case against him, no cause of action is available to the authorities to punish the petitioner in a departmental enquriy once the very cause does not exist any more after acquittal of the petitioner. Therefore, he approached the authorities asking for reinstatement in service after his acquittal in criminal case. The same was not done and the representation submitted by the petitioner was rejected pointing out the fact that the case of the petitioner has already been considered by the authorities in different levels and the matter had already stood closed in the year 2011 itself. Therefore, no further consideration can be made in the matter.
20. It is argued by the petitioner's counsel that the charges levied in the criminal case and the charges levied in the departmental enquiry are almost identical and maximum witnesses to the criminal case as well as departmental enquiry matter are common. Therefore, it cannot be said that there is any difference in the allegations levied against the petitioner in a criminal case to that of a departmental enquiry. And once on the same set of charges the petitioner has been acquitted after facing a criminal trial, the authorities should have considered the case of the petitioner for reinstatement in service as the cause of action does not survive any more.
21. From the perusal of the record it is clear that all the charges are found proved against the petitioner. He may have been acquitted in the criminal Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 10 WP-19329-2015 case but if the judgment passed by the trial Court is perused then the fact that the petitioner while on duty was drunk as is reflected from paragraph 21 & 24 of the judgment passed by the learned trial Court in R.T. No.60/09 as well as the fact that the observation was made by the learned trial Court with respect to the factum of petitioner being in a drunken position while on duty, a departmental enquiry can be initiated against him It cannot be said that allegations/charges made in the criminal case are identical to that of the departmental enquiry. The petitioner was charge sheeted for offence under Section 294, 323 and 327 of IPC and the learned trial Court has observed that the prosecution has totally failed to prove the case against the petitioner and he has been acquitted of all the charges. However, the charge No.2 & 3 in departmental enquire are different.
22. The aspect of acquittal in a criminal case was considered by the Hon'ble Supreme Court in the case of G.M. Tank (supra) wherein it was observed as under-
" 3 0 - The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 11 WP-19329-2015 the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
23. The Hon'ble Supreme Court in the case of Avtar Singh (supra) in paragraph 38 has held as under :-
"38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 12 WP-19329-2015 38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/ verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted:
38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. 38.4.3 If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper. 38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime. 38.9. In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 13 WP-19329-2015 38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
24. Similarly, after acquittal of an employee in a criminal case on the basis of which he was punished in a departmental enquiry the Madhya Pradesh Fundamental Rules 54(2) is to be taken note of -
"54(2)- Where the authority competent to order re instatement is of the opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of subrule (6), be paid full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:
Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation [within 60 days from the date on which the communication in this regard is served on him] and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of subrule (7), be paid for the period of such delay, only such amount not being the whole of such pay and allowances as it may determine."
25. The provisions of Police Regulations, Regulation 241 is relied by the petitioner and is to be seen The same reads as under-
"241- Cases of acquittal when a police officer has been a tried and acquitted by a criminal court, he must as a rule be to reinstated. He may not be punished Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 14 WP-19329-2015 departmentally when the offence for which he was tried constitutes the sole ground of punishment. If, however, the acquittal, whether in the court of original jurisdiction or of appeal was based on of technical grounds or if the facts established at the trial show that his retention in Government service is undesirable, the Superintendent may take departmental cognizance of his conduct, after obtaining the sanction the sanction of the Inspector-General."
26. If the Fundamental Rule 54(2) and Regulation 241 of the Police Regulations are taken note of then after acquittal of an employee in a criminal case on the basis of which the departmental enquiry has been initiated against him and he was been punished thereafter is acquitted, his case should have been considered for reinstatement in service.
27. The expression 'acquittal/honorable acquittal' is not defined under Cr.P.C. but it has been considered by the Hon'ble Supreme Court in the case of Commissioner of Police and another v. Mehar Singh reported in 2013 4 Supreme 531 wherein it is observed as under-
"25. Reliance placed by the respondents on Dhaval Singh is misplaced. In Dhaval Singh, the respondent had not mentioned the fact that a criminal case was pending against him in the application form submitted by him on 21- 27/8/1995 seeking post of a constable. He was provisionally selected and was interviewed pending verification of his character. Before any order of appointment could be issued in his favour, he, realizing the mistake, wrote a letter to the Deputy Commissioner of Police on 15/11/1995 that a criminal case was pending against him and he had inadvertently not mentioned this fact in the application form. On the ground that the respondent had concealed a material fact, his candidature was cancelled on 20/11/1995. He was acquitted in the criminal case on 8/12/1995. On being so acquitted, he filed a representation before the Commissioner of Police which was turned down. He approached the Tribunal. The Tribunal set aside the cancellation of candidature of the respondent and the rejection of his representation. Aggrieved by this, the Commissioner of Police approached this Court. This Court confirmed the Tribunal's order basically on the ground that the order of cancellation dated 20/11/1995 did not show that the information furnished by the respondent vide his letter dated 15/11/1995 was communicated to the Commissioner of Police. There was no indication in the record that the competent authority had a look at the letter. Therefore, the cancellation of candidature was without any proper application of mind and without taking into consideration all relevant materials. The Tribunal's order was upheld on the ground of non-application of mind by the Commissioner of Police to a vital fact. Besides, this Court also noted that pursuant to the Tribunal's order the respondent therein was already reinstated. This decision will have no application to the present case. Reliance on Ghurey Lal is also misplaced. There can be no debate over the observation made by this Court in that case that an accused is presumed to be innocent till proved guilty. These observations were made while Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 15 WP-19329-2015 dealing with a reversal of acquittal by the High Court. They are not relevant to the present case."
28. If the aforesaid principles are applied to the case in hand then it is seen that the acquittal of the petitioner was on the basis of the fact that the prosecution has totally failed to proved the charges against the petitioner. It is not a case wherein benefit of doubt has been extended to the petitioner and he has been acquitted in a criminal case. Therefore it can safely be said that the petitioner's acquittal in a criminal case is an honorable acquittal.
29. Recently, the Hon'ble Supreme Court in the case of Ramlal v. State of Rajasthan and others: 2023 8 Supreme 132 has considered the similar issue and following the judgment passed in the case of G.M. Tank (supra) has held as under-
"27- We are additionally satisfied that in the teeth of the finding of the appellate Judge, the disciplinary proceedings and the orders passed thereon cannot be allowed to stand. The charges were not just similar but identical and the evidence, witnesses and circumstances were all the same. This is a case where in exercise of our discretion, we quash the orders of the disciplinary authority and the appellate authority as allowing them to stand will be unjust, unfair and oppressive. This case is very similar to the situation that arose in G.M. Tank (supra)."
30. The issue in the present case is also similar. The charge levied in the criminal case against the petitioner is that while he was on duty on 03.08.2010 in a running train Pushpak Express Coach No.S-12 between Itarsi and Hoshangabad the petitioner has abused the complainant Md. Rafiq, has beaten him and has demanded Rs.500/- and he was in an intoxicated condition. Based upon the said incident as the FIR was registered against the petitioner the disciplinary action was initiated against the petitioner wherein the charges which are levied are similar. Charge No.1 & 2 are identical to the complaint made against the petitioner. In addition charge No.2 stipulated that while on duty he was in an intoxicated condition and Charge No.3 reflects Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 16 WP-19329-2015 that there is no improvement in working of the petitioner as he was also found guilty of misconduct on earlier occasion. As far as charge No.1 is concerned the same is identical to that of the criminal case. As far as Charge No.2 & 3 are concerned they are different from the offences that have been registered in the criminal case.
31. It is not disputed that on 03.08.2009 the petitioner was on duty in a running train Pushpak Express and has consumed liquor. It is further not disputed that on earlier occasion the petitioner was found guilty of misconduct and was punished with the punishment of penalty of deduction of amount equivalent to increment of one year and his absence from duty from 03.08.2009 to 06.11.2009 was treated to be no work and no pay. He was also placed under suspension. The act of the petitioner that while he was on duty he has consumed liquor and has tarnished the image of the department, therefore, the very act of the petitioner falls under the category of misconduct in violation of Rule 3(1) & (2) of Service Conduct Rules, 1965. The petitioner has been punished after a detailed departmental enquiry in the mater and there are no arguments advanced pointing out any flaw in the departmental enquiry. Therefore, no interference as far as departmental enquiry is concerned can be made in the present case. As far as acquittal of the petitioner in the criminal case is concerned the judgments which are relied upon are virtually of no help to the petitioner as the charges which are levied against the petitioner in a criminal case are different to that in the departmental enquiry. There is a clear observation made by the learned trial Court in the judgment of acquittal that the petitioner was in an intoxicated Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 17 WP-19329-2015 condition while he was on duty in the running train for which the departmental action could have been taken against him was observed by the learned trial Court. Merely the fact that the prosecution has failed to prove the charges against the petitioner cannot be the ground for his reinstatement in service.
32. The consideration in the cases of the departmental enquiry to that in criminal case are entirely different. In the departmental enquiry it is based upon the preponderance of probabilities while in a criminal case strict proof of evidence is required. It is a settled law that both the proceedings can take place simultaneously against the employee. After acquittal of the petitioner in criminal proceedings, reinstatement in service cannot be ordered casually and in a routine manner. The entire facts and circumstances of the case are required to be seen.
33. The law with respect to interference as far as the cases of departmental enquiry is concerned is settled in several cases especially in the case of Union of India vs P. Gunasekaran reported in (2015) 2 SCC 610) wherein certain guidelines have been laid down by the Hon'ble Supreme Court with respect to the interference in cases of departmental enquiry which are as under:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 18 WP-19329-2015 and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience."
34. The scope of examination and interference under Article 226 of the Constitution of India in a case of the present nature, is no longer res integra. In State of Andhra Pradesh v S Sree Rama Rao:AIR 1963 SC 1723, the Hon'ble Supreme Court held as under-
'7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant : it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.' (emphasis supplied)
35. The above was reiterated by the Hon'ble Supreme Court in the case of State Bank of India v Ram Lal Bhaskar, (2011) 10 SCC 249. Three learned Judges of the Hon'ble Supreme Court stated as under in State of Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 19 WP-19329-2015 Andhra Pradesh v Chitra Venkata Rao, (1975) 2 SCC 557:
'21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao [AIR 1963 SC 1723: (1964) 3 SCR 25: (1964) 2 LLJ 150]. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.
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20 WP-19329-2015
23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan [AIR 1964 SC 477: (1964) 5 SCR 64].
24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.
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26. For these reasons we are of opinion that the High Court was wrong in setting aside the dismissal order by reviewing and reassessing the evidence. The appeal is accepted. The judgment of the High Court is set aside. Parties will pay and bear their Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 21 WP-19329-2015 own costs.' (emphasis supplied)
36. Further the Hon'ble Supreme Court in the case of Union of India v K G Soni, (2006) 6 SCC 794, has opined as under:-
'14. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223: (1947) 2 All ER 680 (CA)] the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision.
15. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.' (emphasis supplied)
37. If the aforesaid settled principle of law is applied to the case in hand then no relief can be extended to the petitioner as he has participated in the departmental enquiry and failed to point out any flaw in the departmental enquiry.
38. Looking to the over all facts and circumstances of the case, this Court does not deems it appropriate to direct for reconsideration of the case of the petitioner for reinstatement in service merely because he has been acquitted in the criminal case. The petitioner is an employee in the disciplined police Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:7714 22 WP-19329-2015 force wherein the employee should be of an impeachable character. There should not be any criminal cases registered against him. The authorities have taken a lenient view in the case and instead of terminating the services has ordered for compulsory retirement.
39. Under these circumstances, the rejection of representation of the petitioner denying reinstatement in service is just and proper and does not call for any interference.
40. The petition sans merit and is accordingly dismissed. No order as to costs.
(VISHAL MISHRA) JUDGE L.Raj Signature Not Verified Signed by: LORETTA RAJ Signing time: 28-02-2025 1:28:51 PM